Four years ago, Sylvia Gonzalez, a newly elected member of the Castle Hills, Texas, city council, was charged with concealing a government record, a misdemeanor that would have resulted in her removal from office if she had been convicted. Bexar County District Attorney Joe Gonzales declined to pursue the case, and it is not hard to see why. The charge, which was orchestrated by Gonzalez's political opponents, was based on what she describes as an honest mistake: After a city council meeting, she says, she accidentally picked up a bundle of petitions against City Manager Ryan Rapelye—petitions that she herself had organized—and placed it in her binder along with other papers.
As a result, Gonzales was arrested two months later and spent a day in jail, after which her mug shot appeared in local news reports. According to a Supreme Court petition that the Institute for Justice filed on Gonzalez's behalf in April, "Gonzalez was so hurt by the experience and so embarrassed by the media coverage of her arrest" that "she gave up her council seat and swore off organizing petitions or criticizing her government." On Friday, the Supreme Court agreed to hear her case, Gonzalez v. Trevino, which poses the question of what counts as "objective evidence" that someone was arrested in retaliation for constitutionally protected activity.
"We are thrilled that the Court agreed to hear Sylvia's case," Institute for Justice attorney Anya Bidwell said. "Criminal laws cannot be used to launder First Amendment violations and create backdoor censorship. But that's exactly how Castle Hills officials used them against Sylvia."
Gonzalez's experience suggests that First Amendment rights are not as secure as Americans commonly assume. "I didn't think this could happen in America," she said. "No one should be arrested for standing up for what they believe in. I'm hopeful that the Supreme Court will hold the city accountable so that no one else will have to go through what I went through."
The circumstances of Gonzalez's arrest leave little doubt that she was the victim of a trumped-up charge provoked by her political activity. Gonzalez, a 72-year-old retiree, won an upset victory in a 2019 city council election after campaigning on a promise to seek Rapelye's replacement. Toward that end, she organized a petition that a resident presented to Mayor Edward Trevino on May 21, 2019, at the first city council meeting that Gonzalez attended. The ensuing debate about Rapelye's performance continued at a meeting the next day, during which Gonzalez sat next to Trevino, who as mayor presides over city council meetings. After that meeting, according to Gonzalez, she "picked up the papers strewn around her sitting area and put them in her binder," which she left on the table as she crossed the room to converse with a constituent.
"A few minutes later," Gonzalez's Supreme Court petition says, "a police officer in charge of safety at the meeting tapped Gonzalez on her shoulder and explained that the mayor wanted to talk to her. The police officer escorted Gonzalez to the mayor," who "was still at his seat next to Gonzalez's." Trevino "then asked Gonzalez, 'Where's the petition?' Gonzalez responded, 'Don't you have it? It was turned in to you yesterday.' At the mayor's prompting, Gonzalez looked for the petition in her binder and to her surprise found it there. Gonzalez then handed the petition to the mayor," who "volunteered to Gonzalez that she 'probably picked it up by mistake.'"
That was not the end of the matter. Trevino and Police Chief John Siemens, Rapelye's allies, used the briefly missing petition as the pretext for a criminal investigation that took nearly two months. "Three weeks into the unfruitful investigation," Gonzalez says, Siemens "deputized an attorney and his friend," Alexander Wright, "to take over as a 'special detective.'" A month later, Wright filed an arrest affidavit that charged Gonzalez with violating Section 37.10(a)(3) of the Texas Penal Code, which applies to someone who "intentionally destroys, conceals, removes, or otherwise impairs the verity, legibility, or availability of a governmental record."
That charge was implausible on its face, since it implied that Gonzalez deliberately hid the very petition that she had worked hard to produce. And the affidavit itself cited Gonzalez's agitation against Rapelye as evidence of her offense. "From her very first meeting in May of 2019," it said, Gonzalez "has been openly antagonistic to the city manager, Ryan Rapelye, wanting desperately to get him fired." That plan, Wright explained, "involved collecting signatures on several petitions." He complained that Gonzalez had visited a resident's house to "get her signature on one of the petitions under false pretenses" by "misleading her" and "telling her several fabrications regarding Ryan Rapelye."
Instead of seeking a summons, the usual approach in Bexar County for nonviolent misdemeanors, Wright sought an arrest warrant. And instead of referring the matter to the district attorney's office, Wright presented his affidavit directly to a judge—a procedure that the Institute for Justice says is generally "reserved for emergencies or violent felonies." That meant the warrant "wasn't in the satellite booking system, so Gonzalez could not be booked, processed, and released without jailtime." That is why Gonzalez, who "turned herself in as soon as she learned about the warrant," ended up behind bars for a day, "handcuffed, on a cold metal bench, wearing an orange jail shirt, and avoiding the restroom, which had no doors."
Gonzales, the district attorney, "dropped the charges as soon as he learned about them." Trevino et al. nevertheless achieved what Gonzalez says was their goal all along by driving her from office.
In a September 2020 complaint that she filed in the U.S. District Court for the Western District of Texas, Gonzalez said Trevino, Siemens, and Wright had violated her First Amendment rights by orchestrating her arrest in retaliation for her opposition to Rapelye. She noted that "the statute has never been used to arrest a person in an analogous situation."
The defendants argued that Gonzalez's First Amendment claim was barred by the existence of probable cause for her arrest. But in the 2019 case Nieves v. Bartlett, the Supreme Court held that a plaintiff could prove retaliation even when his arrest was based on probable cause if he could present "objective evidence that he was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech had not been." In the majority opinion, Chief Justice John Roberts used a jaywalking example to illustrate that exception.
"At many intersections," Roberts wrote, "jaywalking is endemic but rarely results in arrest. If an individual who has been vocally complaining about police conduct is arrested for jaywalking at such an intersection, it would seem insufficiently protective of First Amendment rights to dismiss the individual's retaliatory arrest claim on the ground that there was undoubted probable cause for the arrest."
In a partial concurrence, Justice Neil Gorsuch underlined the reason for rejecting a blanket rule that blocks a retaliation claim whenever there is probable cause for an arrest. "History shows that governments sometimes seek to regulate our lives finely, acutely, thoroughly, and exhaustively," Gorsuch wrote. "In our own time and place, criminal laws have grown so exuberantly and come to cover so much previously innocent conduct that almost anyone can be arrested for something. If the state could use these laws not for their intended purposes but to silence those who voice unpopular ideas, little would be left of our First Amendment liberties, and little would separate us from the tyrannies of the past or the malignant fiefdoms of our own age."
Based on Nieves, U.S. District Judge David Alan Ezra ruled in March 2021 that Gonzalez could proceed with her lawsuit. A divided panel of the U.S. Court of Appeals for the 5th Circuit disagreed, ruling in July 2022 that Gonzalez's lawsuit was doomed by her failure to cite other cases in which people had not been arrested for conduct similar to hers.
"Nieves requires comparative evidence," Judge Kurt D. Engelhardt wrote in the majority opinion, "because it required 'objective evidence' of 'otherwise similarly situated individuals' who engaged in the 'same' criminal conduct but were not arrested. The evidence Gonzalez provides here comes up short."
Engelhardt acknowledged that the U.S. Court of Appeals for the 7th Circuit had interpreted the Nieves test differently in the 2020 case Lund v. City of Rockford. The Supreme Court in Nieves did "not appear to be adopting a rigid rule that requires, in all cases, a particular form of comparison-based evidence," the 7th Circuit said in Lund. "We do not adopt this more lax reading of the exception," Engelhardt wrote. "Instead, the best reading of the majority's opinion compels the opposite approach. The Court's language was careful and explicit: it required 'objective evidence' of 'otherwise similarly situated individuals' who engaged in the same criminal conduct but were not arrested."
Dissenting Judge Andrew Oldham thought Gonzalez had met the Nieves test. Her evidence "is obviously objective," he said. "She did a comprehensive 'review of misdemeanor and felony data from Bexar County over the past decade.' And she doesn't rely on 'the statements and motivations of the particular [officials].'"
Gonzalez's evidence, Oldham wrote, "supports the proposition that Nieves requires: She 'was arrested when otherwise similarly situated individuals not engaged in the same sort of protected speech [or conduct] had not been.' Evidence that an arrest has never happened before (i.e., a negative assertion) can support the proposition that there are instances where similarly situated individuals not engaged in the same protected activity hadn't been arrested (i.e., a positive inference)….Common sense dictates that [Gonzalez's] negative assertion amounts to direct evidence that similarly situated individuals not engaged in the same sort of protected activity had not been arrested."
Oldham also questioned whether the Nieves test made sense in this context. That rule was meant to "accommodate the necessities of split-second decisions to arrest," he said. "It's unclear to me why we should apply a rule designed for split-second warrantless arrests to a deliberative, premediated, weeks-long conspiracy."
Last February, the 5th Circuit declined to rehear the case. "The First Amendment is supposed to stop public officials from punishing citizens for expressing unpopular views," Judge James C. Ho noted in his dissent. "In America, we don't allow the police to arrest and jail our citizens for having the temerity to criticize or question the government. If the freedom of speech meant anything to our nation's Founders, it meant that 'it was beyond the power of the government to punish speech that criticized the government in good faith.'"
Ho noted that "few officials will admit that they abuse the coercive powers of government to punish and silence their critics" and that officials are "often able to invent some reason to justify their actions." Courts therefore "must be vigilant in preventing officers from concocting legal theories to arrest citizens for stating unpopular viewpoints," he said. "Respect for the First Amendment demands that probable cause pose no impenetrable barrier to a retaliation claim." As Ho saw it, that is why the Supreme Court made an exception for cases like this one.
In March 2022, the Institute for Justice notes, the U.S. Court of Appeals for the 9th Circuit joined the 7th Circuit in rejecting the proposition that Nieves requires evidence that specific individuals were not arrested for conduct similar to the plaintiff's. In Ballentine v. Tucker, which involved allegedly retaliatory arrests for sidewalk chalking, the plaintiffs, like Gonzalez, simply noted that there was no record of similar arrests.
The Institute for Justice is asking the Supreme Court to resolve this circuit split in favor of a rule that does not require the sort of evidence that the 5th Circuit demanded. "At bottom," it says, "the question is whether Nieves designed a rule that requires courts to blind themselves to clear evidence of retaliatory motive as long as probable cause is present to arrest, even for the most mundane of offenses." If so, it says, "America's 'exuberantly' growing criminal laws can be used 'not for their intended purposes but to silence those who voice unpopular ideas' and 'little [is] left' of the fundamental right 'to speak without risking arrest.'"
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